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Ammalu Vs. Kothambari Vellachi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberS.A. No. 829 of 1970
Judge
Reported inAIR1974Ker116
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 47, Rule 1; Transfer of Property Act, 1882 - Sections 51; Kerala Compensation for Tenants Improvements Act, 1958 - Sections 5(3)
AppellantAmmalu
RespondentKothambari Vellachi
Appellant Advocate T.M. Krishnan Nambiar and; K. Paramesh, Advs.
Respondent Advocate V. Rama Shenoi and; R. Raya Shenoi, Advs.
DispositionPetition dismissed
Cases ReferredNagendrabala v. Panchanan Mourie
Excerpt:
.....- petition by appellant to review judgment in second appeal - present claim arises in execution of decree - compensation in respect to building fixed on 08.07.1957 - in view of deposit after long number of years appellant deprived of present value of building - these points do not confer jurisdiction on execution court to go behind terms of decree or to decide matters already concluded between parties - point ought to be raised by appellant's predecessor-in-interest in appeal filed against trial court's decree. - - syed ahmad ishaque, air 1955 sc 233, what is an error apparent on the face of the record cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each..........of the building both under section 5 (3) of act 29 of 1958 and also under section 51 of the transfer of property act.5. the second appeal arises out of an order in execution of the decree. the decree is for recovery of possession of the plaint schedule property after setting aside the sale deed executed by some of the members of a marumakkathayam terwad. the trial court's decree was passed on 8-7-1957 and the value of the building was determined at rs. 16,000/-and odd in the decree of the trial court on the basis of the commissioner's report dated 27-6-1966. it is the admitted case that the value of improvements fixed by the decree was not deposited within a reasonable time of the decree. there was an appeal by the plaintiff against the decree of the trial court objecting to the.....
Judgment:
ORDER

T.S. Krishnamoorthy Iyer, J.

1. This is a petition by the appellant to review the judgment in the second appeal. The second appeal was dismissed on two grounds. One is that the appellant is not entitled to revaluation of the building for which compensation was determined before the decree because of Section 5 (3) of the Kerala Compensation for Tenants Improvements Act, 11958 (Act 29 of 1958) and the second ground is that the appellant is not entitled to flxity of tenure,

2. The ground for the review petition is that the view taken by this Court on the first ground is vitiated by an error apparent on the face of the record. The first ground was disposed of by this Court thus 5

'That Section 5 (3) of Act 29 of 1958 will not enable the execution Court to re-value a building for which compensation has been fixed under the decree ofthe Court has been the view taken in. a series of decisions of this Court'.

3. It is contended by counsel for the petitioner that the impression in the mind of the Court at the time the appeal was disposed of. that the interpretation of Section 5 (3) of Act 29 of 1958 has been concluded by series of decisions of this Court, is not correct and it will constitute ah error apparent on the face of the record.

4. As was pointed out by the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233, what is an error apparent on the face of the record cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. It will be legitimate to assume that at the time when the second appeal was disposed of, it was assumed that the decisions are to the effect that for purposes of revaluation of a building Section 5 (3) of the Act cannot apply. But no exact decision of this Court has been brought to my notice taking that view. I, therefore, hold that there is an error apparent on the face of the record in respect of the decision on the first around and I reopen the same. But. I heard counsel on both sides on the claim of the appellant for a revaluation of the building both under Section 5 (3) of Act 29 of 1958 and also under Section 51 of the Transfer of Property Act.

5. The second appeal arises out of an order in execution of the decree. The decree is for recovery of possession of the plaint schedule property after setting aside the sale deed executed by some of the members of a Marumakkathayam terwad. The trial Court's decree was passed on 8-7-1957 and the value of the building was determined at Rs. 16,000/-and odd in the decree of the trial Court On the basis of the commissioner's report dated 27-6-1966. It is the admitted case that the value of improvements fixed by the decree was not deposited within a reasonable time of the decree. There was an appeal by the plaintiff against the decree of the trial Court objecting to the claim for value of improvements which was pending for some years. Finally the decree of the trial Court was confirmed and the appeal was dismissed

8. It was thereafter that the plaintiff filed the petition for execution and deposited the compensation for improvements fixed under the trial Court's decree. In the meanwhile, the defendant's Interest in the building was sold in Court auction and the court-auction-purchaser assigned it to the appellant who claimedenhancement of compensation In the execution Court because of the rise in prices of materials. No compensation for trees is involved in this case.

7. In pursuance to the claim for enhancement of compensation a commission was issued by the execution Court to assess the value of the building and the commissioner filed his report. It is seen therefrom that the appellant will be entitled to about 14 times more than what has been awarded by the decree. The claim was overruled both by the execution Court as well as by the lower appellate Court. The claim was founded only on Section 5 (3) of Act 2 of 1958 in the Courts below. Section 51 of the Transfer of Property Act was not invoked to sustain the claim. I do not want to shut out the arguments based on Section 51 of the Transfer of Property Act merely for the reason that it was not raised in the lower Court

8. In applying Section 51 of the Transfer of Property Act or Section 5 (3) of Act 29 of 1958 it should not be for gotten that the present claim arises in execution of the decree. It is a fundamental principle of law that it is not the function of the execution Court to go behind the decree or to decide matters which have already been concluded between the parties over again. The facts that the compensation in respect of the building was fixed as early as 8-7-1957 and in view of the deposit after a long number of ears the appellant is deprived of the present value of the building are not matters that can confer jurisdiction on the execution Court to so behind the terms of the decree. This point should have been raised by the appellant's predecessor-in-interest in the appeal filed by the plaintiff against the trial Court's decree, or the matter should have been left open by the trial Court to be decided by the execution Court.

9. Section 51 of the Transfer of Property Act as interpreted by the Supreme Court In Naravana Rao v. Basavarajappa, AIR 1956 SC 727 can only helo the appellant to show that the date of ascertainment of the compensation for improvements should be as near the date of eviction as possible. That cannot afford any help to the appellant in this case. If the trial Court has done a wrong thing in not doing so or in not issuing such directions to the execution Court to implement Section 51 of the Transfer of Property Act in the wav in which It has been interpreted by the Supreme Court, the appellant has to thank himself. That will not in any way confer power upon the execution Court to decide the matter over again. No benefit can therefore, accrue to the appellant, on the basis of Section 51 of the Transfer of Property Act The plea that in view of the decision of the Supreme Court interpreting Section 51 of the Transfer of Property Act every decree should be deemed to contain a clause by implication empowering the execution Court to reopen the claim for improvements to satisfy the terms of Section 51 of the Transfer of Property Act does not appeal to me.

10. Counsel on behalf of the respondent contended reiving on the decision in Nagendrabala v. Panchanan Mourie, AIR 1934 Cal 290 that; the appellant being a transferee from the vendee who is the defendant, cannot claim the benefit of Section 51 of the Transfer of Property Act. This decision has no application at this stage when the claim for improvements has already been upheld by the decree. The present claim is only for a revaluation of the building for which it has alreadv been found that the assignor of the appellants is entitled to the value. Prima facie It looks to me that AIR 1934 Cal 290 has no application to this case.

Section 5 (3) of Act 29 of 1953 reads:--

'The amount of compensation for improvements made subsequent to the date up to which compensation for improvements has been adiudsed in the decree and the re-valuation of an improvement, for which compensation has been so adjudged, when and in so far as such revaluation mav be necessary with reference to the condition of such improvement at the time of eviction as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent, or otherwise in respect of the tenancy, shall be determined by order of the Court executing the decrees and the decree shall be varied in accordance with, such order'.

It is no doubt correct that the effect of Section 5 (3) of Act 29 of 1958 is to set at naught the finality of a decree fixing compensation in respect of certain matters; but it is onlv to such extent and no more.

11. Then the question is whether Section 5 (3) is satisfied in this case, and will enable the appellant to get the build-ins in respect of which the compensation is claimed re-valued. According to the Section, re-valuation is possible and can be claimed onlv when and in so far as such re-valuation mav be necessary with reference to the condition of such improvement at the time of eviction. The words 'condition of such improvement at the time of eviction' were discussed to a considerable extent at the bar. Counselbehalf of the appellant relyins onthe decision in AIR 1956 SC 727 interpreted those words as meaning as including even changes in the marketable conditions of improvement. The decision in AIR 1956 SC 727 cannot support counsel for the appellant in such an interpretation. 'With reference to the condition of such improvement' in Section 5 (3) can onlv mean a change In the nature and quality of improvement. If a building which is 25 years old. is valued today on the basis of the prevailing prices, depreciation for the age will have to be reduced to ascertain the compensation for improvement. I have, therefore, no doubt in saving that Section 5 (3) cannot apply.

12. I, therefore, hold that neither Section 51 of the Transfer of Property Act nor Section 5 (3) of Act 29 of 1958 can help the appellant I, therefore, confirm the decision in the second appeal and dismiss the petition. No costs.


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